Hobbs v. Hobbs
| Decision Date | 03 June 1987 |
| Docket Number | No. 56793,56793 |
| Citation | 508 So.2d 677 |
| Parties | Brenda Castille HOBBS v. William Monroe HOBBS. |
| Court | Mississippi Supreme Court |
H. Fariss Crisler, III, Jackson, for appellant.
Charles O. Moore, Jackson, for appellee.
Before HAWKINS, P.J., and PRATHER and ANDERSON, JJ.
Brenda Castille Hobbs appeals from a decree of the chancery court of the First Judicial District of Hinds County modifying an original December, 1982, custody decree entered by that court.
Because there is a serious question whether the chancery court had jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), both because Brenda had lived in the State of Louisiana with the child for at least two years prior to institution of the modification proceedings by her divorced husband, and also a Louisiana court had assumed jurisdiction and entered a separate order modifying custody, we remand to the chancery court for a determination whether it has jurisdiction.
William Monroe Hobbs and Brenda Castille Hobbs were married February 15, 1975, and had one child, Castille Elizabeth Hobbs, born January 28, 1980. They separated May 16, 1982, while they resided in Jackson. Brenda then moved to her childhood home in Breaux Bridge, Louisiana. On December 22, 1982, the chancery court for the 1st Judicial District of Hinds County granted the couple a divorce based upon irreconcilable differences and incorporated in its decree a property settlement and custody agreement executed by Brenda and William on December 13.
On November 30, 1984, Brenda's Louisiana attorney mailed the clerk of the St. Martin Parish Court a petition to modify the custody decree of the Hinds County Chancery Court. Attached to the petition were copies of the divorce decree, property settlement, a proposed order of custody change, and the affidavit of Brenda made pursuant to L.S.A.-R.S. 13:1708 of the Louisiana Code. The affidavit, executed November 27, 1984, alleges that Castille Elizabeth had resided with Brenda in Louisiana since August 1, 1982. It also alleges Brenda had no information of another custody proceeding regarding the child in any other state.
The St. Martin Parish clerk received these documents on December 3, 1984, and sent them by certified mail to William who was living in Bay St. Louis. The record in this cause does not show whether or not William ever received the mailed process.
On January 7, 1985, Brenda's attorney wrote the St. Martin Parish clerk enclosing a motion for default, along with a proposed On January 22, 1985, Hon. Robert E. Johnson, a district judge of that district, entered an order modifying the original Hinds County Chancery Court decree.
order to be presented to the district judge. On January 11 a district judge of St. Martin Parish for the 16th Judicial District of Louisiana entered a preliminary default for failure to answer under L.S.A.-R.S. 13:1704, in favor of Brenda.
Running along a parallel track, on November 30, 1984, William filed a "Motion for Modification of Final Judgment of Divorce" in the chancery court of the 1st Judicial District of Hinds County. The record does not reveal whether process was had or even attempted on Brenda. On December 20 William also filed a motion in the chancery court, and secured an order the same day permitting him to deposit the monthly child support payments in a William Monroe Hobbs trust account.
On January 8, 1985, William filed a motion to find Brenda in contempt of court for violating his visitation privileges under the original custody agreement. The same day William mailed Brenda's Louisiana attorney notice that he would bring the contempt motion for hearing before the Mississippi chancellor on January 24, 1985.
On January 30 Brenda, represented by a Jackson attorney, answered William's original motion for modification of the decree, alleging as one of her defenses that the chancery court did not have jurisdiction over the parties. She also asserted a "counter motion" which asked the chancery court to curtail visitation granted William in the first decree, and only permit him to see the child in the presence of one or both of his parents. Brenda's counsel failed to inform the chancellor of the Louisiana proceedings in either the answer to modification motion or the counter motion.
Brenda also filed interrogatories to William on January 30, and on the same date William likewise propounded interrogatories to Brenda. On January 31 the chancellor set February 6 as a hearing date on the contempt motion.
On February 6 William filed an "Answer to Motion to Transfer Jurisdiction," and alleged that neither Brenda nor her attorney had complied with Miss.Code Ann. Sec. 93-23-11; -15; -17 and -43. On the same date he filed an "Answer to Counter Motion for Modification of Final Judgment for Divorce."
On February 7 Brenda filed a "Motion to Transfer Jurisdiction," in the chancery court alleging what had transpired in the court proceedings in Louisiana, and attaching a copy of the court file from that court.
The chancellor conducted a hearing on the same day. At the outset of the hearing the chancellor made the following ruling:
I guess the first thing we ought to do is overrule the Motion to Transfer Jurisdiction. At the time this divorce action was filed it is not alleged that the child was within the jurisdiction of the First Judicial District of Hinds County, but it is set forth in the separation agreement and the plaintiff, Brenda Castille Hobbs, invoked the jurisdiction of this Court and this Court has jurisdiction to decide the custody of the child as well as visitation rights and in the court's best judgment the Louisiana court does not have jurisdiction and so the motion to transfer jurisdiction will be overruled.
(R. 56-57)
Following the hearing the chancellor entered an order modifying the original December 22, 1982, custody decree.
Brenda has appealed.
I.
Mississippi as well as Louisiana has adopted the Uniform Child Custody Jurisdiction Act (UCCJA). The Mississippi Legislature passed the Act in 1982, Ch. 414, Laws 1982, Miss.Code Ann. Sec. 93-23-1, et seq., and Louisiana adopted it in 1978. La.Rev.Stat.Ann. Sec....
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